Exculpations Crybabies: Eternal Victims

By Jesse Birnbaum

Some folks just can't get along. There, in a grocery store in suburban Portland, Ore., was cashier Tom Morgan, more or less minding his own business. And there also was cashier Randy Maresh, who seemed to delight in tormenting Morgan. At length Morgan got fed up, hired a lawyer and sued Maresh for $100,000 in damages. The complaint: Maresh "willfully and maliciously inflicted severe mental stress and humiliation . . . by continually, intentionally and repeatedly passing gas directed at the plaintiff." Not only that: Maresh would "hold it and walk funny to get to me" before expressing himself.

The defense countered with the argument that breaking wind is a form of free speech, and that the right to flatulence was protected, in theory if not in so many words, by the First Amendment. After listening patiently to both sides, the judge concluded that the unusual form of aggressive expression was "juvenile and boorish," but he could find no Oregon law prohibiting it. Case dismissed.

That happened in 1987, and the tide of petty American litigiousness has kept on rising to new, absurd heights. This is the age of the self-tort crybaby, to whom some disappointment -- a slur, the loss of a job, an errant spouse, a foul-tasting can of beer, a slip on the supermarket floor, an unbecoming face- lift -- is sufficient occasion to claim huge monetary awards.

It is also the age of the all-purpose victim: the individual or group whose plight, condition or even momentary setback is not a matter that needs be solved by individual effort but constitutes a social problem in itself. "We're not to blame, we're victims" is the increasingly assertive rallying cry of groups who see the American dream not as striving fulfilled but as unachieved entitlement. Crybabyhood is all blame, no pain, for gain. And all too often it works.

The law courts are only one of the crybaby's many avenues of complaint; there is the street, the pulpit, the press. Public officials, writers, children in school -- all nowadays hide behind euphemisms that are often silly, not to say condescending, lest they be castigated by the crybaby for even the most inadvertent slip or imagined insult to this race or that ethnic group. They are fleeing, in other words, before the crybaby's greatest talent: the ability to hand out guilt, frequently entangled in the sacred American discourse on rights. If drunk drivers get into trouble, they have the right to blame their bar owners, and in most states that right is backed up by law. If black moviemaker Spike Lee fails to win first prize at the Cannes Film Festival for his Do the Right Thing, the reason is not that the judges deemed sex, lies and videotape the best movie; the reason is racism.

So widespread is this sort of disaffection, says author John Taylor in a sizzling New York magazine article, that a double-barreled social phenomenon now threatens the real exercise of civil liberties. The first barrel is "victimology." The other is what George Washington University sociologist Amitai Etzioni calls the "rights industry" -- the creation by individuals and special-interest groups of freshly minted freedoms and prerogatives that must be upheld even when they are foolishly asserted, and whose transgression is -- always -- a matter for outcry.

Just about everybody can claim a position in the rights brigade: those who smoke and those who don't; those who demand shelter for the homeless and those who support the right of the homeless to refuse shelter; those who claim rights for fetuses and those who want the right to make their own choice for abortion; those who want their teenagers taught to use condoms and those who insist on the right to keep their kids ignorant of such things; campus hoodlums who insult their fellow students and college administrators who promulgate censorious "rules of conduct" to prevent their students from giving offense to this or that ethnic group, sexual preference, or body type. Their "rights" give their claims -- whatever they may be -- an absolute air, and any attempt to thwart their claims turns them into victims.

Under the corrosive influence of victimology, the principle of individual responsibility for one's own actions, once a vaunted American virtue, seems like a relic. "I have this image," says Roger Conner, executive director of Washington's liberal American Alliance for Rights & Responsibilities, "of human beings as porcupines, with rights as their quills. When the quills are activated, people can't touch each other." That touchiness, Conner adds, "is the visible fruit of the rise of self-absorbed individualism" over the past several decades. "The R word in our language is responsibility, and it has dropped from the policy dialogue in America. A society can't operate if everyone has rights and no one has responsibilities."

Public affairs professor William Galston of the University of Maryland says the practice of blaming others stems from unrealistic expectations of the modern, risk-avoiding age. "If something bad happens to us," he says, "we are outraged because our lives are supposed to be perfect. Two generations ago, if infants were born with birth defects, it was considered an act of God or an act of nature. Today if the baby is not absolutely perfect, the tendency is to believe the doctor is responsible. We've created a set of social expectations and a legal structure in which the blame game can be played as never before."

The combined result of those trends is to make a travesty of what used to be called plain common sense. To be sure, charlatanism and dishonesty exist, and their victims deserve the law's protection. Yes, bigotry is inexcusable, and those who suffer by it, as well as others, are right to oppose it, backed by the full weight of law. Certainly job discrimination on the basis of sex, age or disability is not only morally unconscionable but illegal.

But what to think, for example, about the new area of litigious behavior that has blossomed and might be dubbed emotional tort law? Last March Julie Rems, 26, who is deaf, competed in the early rounds of a Miss America contest in Culver City, Calif. Though she was warned that Miss America rules precluded anyone assisting her onstage, Rems nonetheless brought on an interpreter who helped her lip-read questions. Rems lost the contest and sued the pageant committee and others, charging violation of her civil rights as well as "embarrassment, humiliation and degradation." The case has not yet come to trial.

The University of California has a docket of similar suits long enough to keep the courts busy for years. Ten university attorneys, in fact, work full time solely on cases involving employees. In one recent imbroglio, a U.C. Santa Cruz employee, citing emotional stress, sued a colleague and the university after the colleague wrote a message on official stationery labeling him a racist. The plaintiff lost his case in two courts and plans to appeal to the state supreme court. He has meanwhile retired on a disability pension.

These and similar actions are fertilized by new rules of comparative negligence that allow a plaintiff to recover damages in a lawsuit even if he is partly at fault; this means, for example, that a drunk driver who demolishes an illegally parked car can claim some damages from the defendant's insurer. Changes in ethical guidelines, moreover, permit attorneys to advertise for clients -- all of which has made the lawsuit business a battleground for greedy practitioners. The survey firm Jury Verdict Research estimates that jury awards to plaintiffs of $1 million or more leaped from 22 in 1974 to 558 in 1989. Those figures may be one reason why Congress is now considering a national tort-reform law aimed at restricting frivolous litigation. There is surely something new in the American air that inspired the estate of Christopher Duffy of Framingham, Mass., who stole a car from a parking lot and got killed in a subsequent accident, to sue the proprietor of the lot for failing to prevent auto thefts. The same ingredient in the Zeitgeist must have affected the Philadelphia jury described by journalist Walter Olson in a new book, The Litigation Explosion. The jury awarded $986,000 in 1986 to Judith Haimes, a psychic who was said to be on good terms with John Milton (1608-1674). Haimes sued her doctor and a hospital, alleging that she suffered an allergic reaction and intense headaches from a dye used in a 1976 CAT scan and as a consequence could not use her psychic powers. Paradise lost. The judge set aside the award; the case ground on until it was dismissed on appeal last February.

How many ways can crybabies parse shame and blame? In San Francisco last month, a motley flock turned out to picket the classic Disney movie Fantasia. One man complained that the spooky Night on Bald Mountain scene had terrified his child. Members of an organization called Dieters United objected to the tutu-clad hippos frolicking to the music of Dance of the Hours; the protesters felt the sequence ridiculed fat people. Conservationists were appalled at the waste of water in Sorcerer's Apprentice. Fundamentalist Christians bewailed ) the depiction of evolution in Rite of Spring. Antidrug forces suspected something subliminally prodrug in the Nutcracker Suite episode featuring dancing mushrooms. Only Fantasia conductor Leopold Stokowski escaped chastisement, perhaps because he is dead.

But not all instances of victimology are so ludicrous. Two men hiding in a New York City subway tunnel were burned when they accidentally touched an electrified rail; a jury threw $13 million at them. The city is appealing the award. Joel Steinberg, the wife beater and child abuser who was convicted in New York City in 1989 of the battering death of his six-year-old illegally adopted daughter Lisa, told the court, "I'm a victim, as was everyone else who knew Lisa."

Far more dangerous is the way demagogues have been able to dismiss as no more than "racism" the workings of the U.S. justice system in cases like the notorious 1987 Tawana Brawley affair. The fragile mechanisms of equity that Americans have struggled hard to establish -- and must still struggle hard to improve -- are among the things most threatened by the sweeping fiats of victimology.

Language itself is buckling under the strain of avoiding insult and injury to everybody in response to the crybaby's complaint. Ever mindful of the genuine or imagined sensitivities of women and minorities, the University of Missouri's Multicultural Management Program has produced for newspaper reporters a 22-page dictionary of loaded words and phrases. Some of the proposals in the lexicon are unarguable (bimbo and broad are derogatory when applied to women). Other entries, listed mainly to pacify various groups, are questionable. Burly should be used with care, since it is "too often associated with large black men, implying ignorance and considered offensive in this context." Articulate could be deemed offensive "when referring to a minority . . . and his or her ability to handle the English language." Illegal alien is unkind, especially to Mexican Americans; "the preferred term is undocumented worker or undocumented resident."

The real issue is not that words can hurt, or that civil rights and tolerance are essential in a democracy, but that hypersensitivity clouds rational discourse: how to knit a contentious American society together rather than allow it to become balkanized by competing interests. "We need to reset the thermostats," writes sociologist Etzioni, "not shatter windows or tear down walls. Extremism in defense of virtue is a vice."

William Donohue, a sociologist at Pittsburgh's La Roche College, argues that this same extremism reflects a perverse view of freedom. "Civil liberties means the right of the individual to win against the majority," he says. "But civility and community are both predicated on the individual being subordinate to the interest of society. If you make a fetish of individual rights, you are going to emasculate that community."

Perhaps one step toward more civility and community would be a modification of the famous injunction in Henry VI: First, let's restrain -- not kill -- all the lawyers. Then add a second proposal that Shakespeare never had to think of: Let's gag all the crybabies. Better yet, let them gag themselves.

With reporting by Ann Blackman/Washington, Tom Curry/Chicago and Edwin M. Reingold/Los Angeles